Howard v. Commissioner of Social Security

Filing 23

ORDER that defendant Commissioner is Ordered to serve the Declaration of Patrick J. Herbst and attached exhibits 22 on plaintiff and show proof of service within (10) days of the date of this Order. Plaintiff shall have (21) days from the date of service of the Declaration of Patrick J. Herbst and attached exhibits to submit a supplemental response to the Commissioner's 18 motion to dismiss, addressing any issued raised in the declaration and attached documents. Signed by Magistrate Judge Karen L. Litkovitz on 5/12/2014. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DAVID C. HOWARD,
Plaintiff,

Case No. 1: 13-cv-295
Spiegel, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF SOCIAL SECURITY,
et al.,
Defendants.

ORDER

Plaintiff David C. Howard, proceeding pro se, brings this action seeking to recover social
security benefits to which he allegedly is entitled. He names as defendants the Commissioner of
Social Security (Commissioner) and "Ms. Phyllis M. Smith-Great Lakes Program Service Ctr"
(Smith).
On November 22, 2013, the Commissioner filed a motion to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)( 1) for lack of subject matter jurisdiction based on plaintiffs
failure to exhaust his administrative remedies. (Doc. 18). Plaintiff filed two motions to stay this
matter in response to the motion to dismiss. (Docs. 20, 21). Subsequently, on March 10, 2014,
the Commissioner filed the Declaration of Patrick J. Herbst, the Social Security Administration
employee vested with the responsibility for processing plaintiffs claim, and several documents
attached as exhibits to the declaration. (Doc. 22). The declaration and exhibits are referenced in
the motion to dismiss, but the Commissioner failed to attach these documents to the motion.
There is no indication that plaintiff ever received notice of Mr. Herbst's declaration and attached
exhibits because defendant's filing does not include a certificate of service pursuant to Fed. R.
Civ. P. 5 showing the documents were served on plaintiff, and plaintiffhas not responded to the
submission. The Court will therefore direct that service of the documents be made on plaintiff

and will defer issuing a report and recommendation on the motion to dismiss until plaintiff has
had an opportunity to respond to defendant's submission.
Accordingly, defendant Commissioner is ORDERED to serve the Declaration of Patrick
J. Herbst and attached exhibits (Doc. 22) on plaintiff and show proof of service within ten (1 0)

days of the date of this Order.
Plaintiff shall have twenty-one (21) days from the date of service of the Declaration of
Patrick J. Herbst and attached exhibits to submit a supplemental response to the Commissioner's
motion to dismiss (Doc. 18), addressing any issues raised in the declaration and attached
documents.

IT IS SO ORDERED.

Date:

~/ ~j_L
Karen L. Litkovitz ~
United States Magistrate Judge

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